Marble Point Energy Ltd v Multiperils International Inc.

• Jurisdiction: British Virgin Islands
• Judge: Joseph-Olivetti, J.,JOSEPH-OLIVETTI, J.
• Judgment Date: 04 May 2007
• Docket Number: CLAIM NO. 238 OF 2006
• Court: High Court (British Virgin Islands)
• Date: 04 May 2007

IN THE HIGH COURT OF JUSTICE

CLAIM NO. 238 OF 2006

BETWEEN

Marble Point Energy Ltd.

Claimant

and

Multiperils International Inc.

Defendant

Appearances:

Mr. Michael Pringle of Maples & Calder for the Claimant

Gerard St. C. Farara Q.C. of Farara Kerins for the Defendant

(Civil practice — stay of proceedings — stay granted on a forum challenge — application to lift stay to permit a summary judgment application — Court's jurisdiction to lift stay — considerations to be taken into account)

Joseph-Olivetti, J.

1 —On 12 ^th December, 2006 I ordered a stay of this action on the ground of forum non conveniens in favour of the courts of Canada. Marble Point Energy Ltd. (‘Marble Point’) appealed the decision and it seems to me that the Court of Appeal, perhaps unwittingly, but consistent with the prevailing spirit of the World Cup Cricket series currently underway here in the Caribbean delivered a “chinaman” as, acting ostensibly on a ‘hint from the court’1 Marble Point's appeal was adjourned to allow it to bring this application to lift the stay for the limited purpose of applying for summary judgment. As it

is, and had he not done so, it would have been surprising, Learned Queen's Counsel for Multiperils, has boldly asserted 2 that by entertaining this application I have been called upon to hear an appeal from my own decision, hence my reference to that quintessential English game.

The Background

2 The events giving rise to the action itself and to the stay were fully set out in my judgment which imposed the stay (‘the Judgment’) and it would be superfluous to repeat them here.

The Submissions in Opposition

3 Mr. Farara QC for Multiperils strenuously opposed the application. His arguments, in a nutshell, are (1) that this application is not one which could properly be brought in law hence the dearth of precedent, (2) that it amounts to a re-hearing of the forum challenge or to a ‘second bite at the cherry’ as the court had considered the matter of summary judgment as part of the arguments advanced by Marble Point in opposition to the forum challenge and had properly rejected it, (3) the assignment from Majestic Capital did not change anything as Marble Point still had the duty to prove the fraud in which it alleged that Multiperils was a party to, and (4) that in any event this was not a proper case for summary judgment as Marble Point could not establish that it would succeed as a matter of course, which was the required standard it had to meet. on this application. He also raised issues of delay in bringing the application. Counsel relied on several authorities in both his written and oral submissions including Woodhouse v. Consignia Plc3. He sought to distinguish the cases relied on by Marble Point which included Merrill Lynch, Pierce Fenner & Smith Inc. v. Raffia4, Standard Chartered Bank v. Pakistan National Shipping Corporation and others5 and Adria Services YU v. Grey Shipping Co.(30 ^th July 1993)

which had been followed in a line of English cases and in Febvre Company Limited v. Grape Expectations SA6, in this jurisdiction.

Court's Analysis

4 The novelty of an application has never been among the criteria for holding that the court has no jurisdiction to entertain it and common law is rife with examples of novel applications and arguments which have succeeded and have established the foundation for righting wrongs which would otherwise have been left without remedies. 7

5 To my mind, where no precedent for a particular relief or claim exists one must perforce have regard to the relevant general principles to determine whether or not the court has jurisdiction.

6 What then is the court's jurisdiction to grant a stay of proceedings generally? Under the proviso to s. 18 of the West Indies Associated States Supreme Court (Virgin Islands) Act Cap. 80 which deals with injunctions or prohibition of proceedings in the High Court or the Court of Appeal it is implicit that the High Court has an inherent discretion to direct a stay of proceedings in any cause or matter pending before it.

7 And, under s. 7 of Cap. 80, the High Court is vested with the same jurisdiction (save in Admiralty) and with the same powers and authorities incidental to its jurisdiction as were vested in the High Court of Justice in England on 1 ^st January 1940. Further, by s. 11 the jurisdiction vested in the High Court in civil proceedings is to be exercised in accordance with Cap. 80 and any other law in force in the BVI and rules of court and where no special provision exists as nearly as may be in conformity with the law and practice of the High Court of Justice in England.

8 The English court's jurisdiction to grant a stay, which pertains to our courts as well by virtue of the foregoing provisions of Cap. 80, is succinctly set out in Halsburys Laws of England 4 ^th edn. Vol. 37 para. 437–446 para. 437— ‘The court's power to stay proceedings may be exercised under particular statutory provisions, or under the rules of the supreme court or under the court's inherent jurisdiction or under any or all of these powers, since they are cumulative, and not exclusive, in their operation.’

9 In the case of a forum challenge the court's jurisdiction to grant a stay arises under its inherent jurisdiction as well as under CPR 9.7, those powers are concomitant and discretionary. See the Court of Appeal (Rawlins, JA) in Addari v Addari. 8 There is, I think, no cavil about this.

10 As the court has power to grant a stay it must follow logically that included in that power is the power to lift or remove the stay. Again Halsburys op. cit is instructive. Para. 438— ‘Effect of stay of proceedings. A stay of proceedings is not the equivalent of a judgment or of a discontinuance, and may be removed if proper grounds are shown, even if the stay is imposed by a consent order. In contrast with a judgment for the defendant or the dismissal or discontinuance of an action, in the case of a stay of proceedings, whether conditional or absolute, the action still subsists, it is still ‘pending’, and the stay is always potentially capable of being removed. A stay may be removed if good cause or proper grounds are shown or the continuance of the stay could cause or produce injustice or prejudice or where there has been a change in the law.’ (Emphasis added)

11 I am therefore satisfied from this brief review of the general principles that the court has jurisdiction to entertain this application even if there is no precedent on all fours with the application before us.

12 Is this in effect a second application for summary judgment or a re-hearing of the application for a stay? Marble Point's rejoinder to Multiperils' submission on this is that the issue of summary judgment was only raised in a peripheral manner as part of Marble Point's objections to the forum challenge and that the court did not consider the merits of a summary judgment application and in fact there was no application for summary judgment before it. The argument that if Multiperils had no defence there would be no necessity for a trial and thus no need for a stay was advanced before the court.

13 The stay was granted on the basis that the courts of Canada (Ottawa) were the more appropriate courts for the trial of this action. It is obvious, but for these purposes, it is necessary to underscore the fact that the very essence of a forum challenge is deciding which court is the more appropriate one for the trial of the action. See Dicey, Morris and Collins The conflict of laws (14 ^th edn. 206) para.12–026n5. Thus the gravamen of the

arguments advanced for and against the forum challenge was geared towards showing which court was the more appropriate forum for the trial of the action having regard to the principles in Spiliada Maritime Corp. v Cansulex Ltd. 9 It is correct that Marble Point on the forum challenge hearing relied on its assessment of Multiperils defence to argue that as Multiperils had no realistic prospect of defending the action it should not be stayed as it would deprive Marble Point of a substantial benefit, that is the opportunity to apply for summary judgment and it made in-depth submissions on the merits of the defence. However, it was not argued that because Multiperils had no realistic prospects of defending the case there was no need for a trial either here or in Canada and that accordingly no stay should be imposed.

14 I also note that where both an application for stay and an application for summary judgment are pending the proper course is to consider the summary judgment application first. For example, this was the approach adopted in Standard Chartered Bank v. Pakistan National Shipping Corporation and others. 10 In that case the court had before it both an application to stay on the basis that there was an agreement (bill of lading) to refer all disputes to Pakistan, and a summary judgment application. The court dealt with the summary judgment application first, see page 10 para. 4. This approach is that which I followed in Febvre and accords with logic and is supported by the Adria line of cases if logic alone does not suffice.

15 Furthermore, unlike the Adria line of cases there was no summary judgment application pending which would have compelled the Court to logically determine that issue first. What we had before us was only a clear indication from Marble Point that it intended to make such an application if it successfully opposed the forum challenge. Furthermore, having regard to our system of law no court embarks on deciding issues on arguments which were not advanced before it unless it is an obvious case. Accordingly, I find that Multiperils' argument that this application amounts to an appeal from my own judgment or a second application for summary judgment, untenable.

16 Now, as the removal or lifting of a stay is a discretionary remedy the court must consider...